On Thursday afternoon, the Supreme Court of Canada made the fairly unusual move of ruling from the bench on BC's Trans Mountain Pipeline appeal, where they tried to assert that their provincial jurisdiction over certain environmental issues somehow overrode the federal jurisdiction regarding interprovincial pipelines. BC's attempt to create provincial legislation in an area that was clearly federal jurisdiction was entirely performative, an attempt to show that they were using what policy levers they had, and we saw meltdowns from various conservative politicians, federal and provincial, over the matter, demanding that the federal government assert jurisdiction by means of Section 92(10)(c) of the Constitution. It was, predictably, all for naught.
"We are all of the view to dismiss the appeal for the unanimous reasons of the Court of Appeal for British Columbia," Chief Justice Richard Wagner read from the bench minutes after hearing from the final intervenor.
The BC Court of Appeal had already ruled what an eight-year-old and a map could tell you if a pipeline crosses a provincial boundary, it's federal jurisdiction. That BC pursued the matter to the Supreme Court of Canada, with 20 intervenors all making the trek to Ottawa to state their case, was nothing short of the time-honoured political strategy in this country of making the Supreme Court of Canada be the bad guy in a futile fight that a government, federal or provincial, knows they are on the losing side of. In this case, it's not too surprising that the Court ruled from the bench there was no need for them to actually sit down and write a thoughtful decision on the constitutional division of powers because it was plain and obvious.
That Jason Kenney tried to insist that BC's amending their Environmental Management Act created constitutional confusion that demanded federal intervention was always a ludicrous proposition. If the federal government had gone ahead and invoked Section 92(10)(c) in this situation, it would have had the bizarre effect of tacitly acknowledging that an interprovincial pipeline was somehow really provincial jurisdiction that needed to have federal declaration enacted over it, which makes no sense, and would have been constitutional insanity. Rather than creating certainty, it would have actually exacerbated any uncertainty in the situation not there was any actual uncertainty, because it was clear to the aforementioned eight-year-old with a map that a pipeline that crossed a provincial boundary was federal jurisdiction. That the federal government simply let the courts tell BC repeatedly that they were in the wrong was actually the right course of action, even if it took additional time to get this final bit of "clarity." (Of course, Kenney and others demanding the Section 92(10)(c) declaration gave rise to all manner of theories that it was some kind of constitutional magic wand that Trudeau was somehow sitting on, which has eroded any public understanding further, for Kenney's own ends).
There are plenty of examples where the Supreme Court of Canada has been forced to play the role of the long-suffering adult in our governance my own first recollection being the Vriend decision in Alberta, where the province was dragged, kicking and screaming, into accepting that gay, lesbian and bisexual Canadians did have Charter rights even if the Charter doesn't specifically say "sexual orientation" (jurisprudence around trans people didn't come until later). The province knew they were on the wrong side of history, but had to make a show of fighting it to the bitter end because there were too many social conservatives in the caucus at the time, even if they termed themselves Progressive Conservatives. The fact that then-premier Ralph Klein chose not to invoke the Notwithstanding Clause at that point was proof enough that the whole thing was for show.
The Chrétien and Martin governments' use of reference questions on same-sex marriage legislation had the same basic premise forcing the Courts to do the work the government didn't want to (and Paul Martin's additional reference question was arguably even more blatant political ass-covering). The fact that it was the Courts who had to force the government's hand on harm reduction with the InSite case, medical assistance in dying, the country's dated prostitution laws all examples of governments making the courts be the bad guy who "forced" them to deal with uncomfortable issues that could be bad for them at the ballot box. That same dynamic is what John Horgan employed in BC in this case, and it's what Doug Ford and Scott Moe are using with their carbon price challenges (as Brian Pallister and Jason Kenney are following suit with when it comes to their own court challenges to the same federal legislation).
This culture of forcing the courts to be the bad guy has become so ingrained in our political culture that it has become an act of political courage to do the right thing for a government witness the settlement for Omar Khadr. Conservatives to this day insist that the government should have fought it tooth and nail, no matter that it was a losing proposition, no matter that it would have wasted millions of more dollars, because it would have at least signalled that the government wanted to fight it rather than admitting that they made a mistake in violating his human rights, and that the settlement was the punishment for the government that allowed it to happen.
Given how this culture of using the courts in this way has become so entrenched, it's almost enough to hope that the Supreme Court would declare governments vexatious litigants, and put them a short leash in terms of being allowed to file future suits. They won't do it the Court won't impugn motives because there is a right of appeal, but the closest they came was Martin's additional question in the same-sex marriage reference, where the Court decided not to answer it because it was political ass-covering and everyone knew it. Nevertheless, unless we have a change in the political culture in this country, governments will continue to abuse the courts, wasting everyone's time, money, and resources, in order to keep the cycle of cowardice going. Is it too much to ask for a government to be the adults for a change? Apparently so.
Photo Credit: CBC News